STATE OF GUJARAT Vs. MIYAMA ABHRAM MAMAD

JUDGEMENT

(1.) The learned Judges composing the Court of appeal are equally divided in the decision to be rendered in Criminal Appeal No. 1216 of 1984 filed by the State of Gujarat under S. 378 of the Code of Criminal Procedure, 1973 ("the Code" for short) against judgment dated June 2, 1984 rendered by the learned Additional Sessions Judge, Morbi, in Session Case No. 5 of 1984 by which the respondent is acquitted of the offences punishable under Ss. 302, 453, 324 of the Indian Penal Code ("the IPC" for short) and S. 135 of the Bombay Police Act, 1951 and, therefore, the appeal is laid before me under S. 392 of the Code.

(2.) Halimaben Salim is a resident of village Navlakhi, District Rajkot. She has four sons. The name of eldest son is Aliyas whereas the name of the second son is Sumar. The name of son who is younger to Sumar is Dawood whereas the name of the youngest son is Hasam. Halimaben had three daughters. The name of the eldest daughter is Jannat whereas the name of second daughter was Rahima and the name of the youngest daughter is Sharifa.

(3.) The respondent is son of real sister of Halimaben and was married to Rahima, who was daughter of Halimaben. Aliyas, who is eldest son of Halimaben, is residing at Kandla and is married to real sister of the respondent. During the subsistence of marriage with the respondent, deceased Rahima had given birth to five children. The respondent was also residing at Kandla with his wife Rahima and children. The incident in question took place in the night between October 14 and 15, 1983. On October 13, 1983, i.e. the day prior to the date of the incident, deceased Rahima with her children had gone to her mother's place at Navlakhi. On the night between October 14 and 15, 1983, the deceased and her children were sleeping with Sharifa, i.e. sister of the deceased in Osari, i.e., verandah. One Valiben Tidabhai is residing near the house of Halimben. Valiben and her family members were sleeping outside her house. It is the prosecution case that at about 1.30 to 1.45 a.m. on October 15, 1983, the respondent had come to the house of Valiben, and had tumbled over daughter of Valiben as a result of which, the daughter of Valiben had woken up and told that somebody was in the house. Thereupon, Valiben had also woken up and as the person who had intruded into her house was trying to go out of her house, she had given two fist blows. She could identify that the person who had intruded in her house was Abraham, i.e. the respondent, and she had further seen that after leaving her house, the respondent had climbed the house of his father-in-law. Valiben had thereupon raised shouts telling that a thief had come and gone to wake up neighbours. The respondent made entry into the house of his father-in-law by lifting one of the sheet of roof and jumping into Oshri where deceased Rahima was sleeping with her sister, Sharifa. The case of the prosecution is that as the respondent had jumped into Oshri by lifting one of the sheets, a noise had taken place as a result of which, Sharifa was alerted. Sharifa saw that the respondent was armed with a knife. On seeing the respondent with knife, initially Sharifa had gone to embrace her sister Rahima, but was frightened and had gone out of the house towards Valiben who by that time had come near the house of Halimaben. Halimaben was also alerted and witnessed that the respondent after inflicting knife blows on Rahima was dragging her out of the house. Therefore, Halimaben had raised shouts as a result of which her son Sumar, who was sleeping outside the house, had woken up. When Halimaben tried to prevent the respondent from causing further injuries to Rahima, she was also injured. Sumar, who had tried to apprehend the respondent, was also injured in the incident. The case of the prosecution was that taking advantage of the darkness, the respondent had fled from the place of the incident, but left his slippers near the house of Halimaben. On commotion being raised, several persons including Abhu Kala, Ghanshyarnbhai, etc. had collected. Ghanshyambhai was asked to call Jamadar at the place of the incident whereas Abhu Kala had gone to bring a handcart for removing injured Rahima and injured Halimaben to the Hospital. Ghanshyambhai Motilal in the company of Salemamad Noormamad had gone to call Jamadar. They had approached Mavji Dudabhai, who was serving at Maliya-Miyana Police Station. After learning about the incident, Police Constable, Mavji Dudabhai, had taken Ghanshyambhai and Salernamad to Gajubha Jorubha Jadeja, who was Police Head Constable discharging duties at Navlakhi Outpost. After ascertaining the facts about the incident, Gajubha had gone to the place of incident, and removed injured Rahima and injured Halimaben to the Government Dispensary, Navlakhi, in a handcart. During treatment Rahima succumbed to injuries, whereas Halimaben was referred to Morbi Government Hospital for further treatment. Police Head Constable, Gajubha Jadeja, had prepared an occurrence report on the basis of information given by Sumar. Thereafter, he had accompanied Sumar to Maliya-Miyana Police Station where First Information Report lodged by Sumar was recorded by PSI Pravinsinh Jadeja. During the course of investigation of the complaint of Sumar, statements of persons who were found to be conversant with the facts of the case, were recorded and panchnama of place of occurrence, inquest panchnama etc. were prepared. The dead body of deceased Rahima was sent for postmortem examination. The respondent had surrendered before the Police on November 3, 1983. Incriminating articles such as blood stained slippers of the respondent, clothes of the deceased, etc. were sent to Forensic Science Laboratory for analysis. After obtaining report of analysis and on completion of investigation, the respondent was chargesheeted in the Court of learned Judicial Magistrate First Class, Maliya-Miyana, of the offences punishable under Sections 302, 457, 324, IPC and Section 135 of the Bombay Police Act. As the offence punishable under Section 302, IPC is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Rajkot, for trial where it was numbered as Session Case No.5 of 1984.